Bonnier v. Chicago, B. & Q. R. Co., 32991

Citation2 Ill.2d 606,119 N.E.2d 254
Decision Date17 March 1954
Docket NumberNo. 32991,32991
PartiesBONNIER v. CHICAGO, B. & Q. R. CO.
CourtSupreme Court of Illinois

James A. Dooley, Chicago, for appellant.

J. L. Rice, Charles F. White, C. W. Krohl, Theodore G. Schuster, J. R. Wolfe, and Andrew C. Scott, Chicago, for appellee.

DAILY, Justice.

This appeal involves an action brought in the superior court of Cook County by Edward Bonnier, plaintiff-appellant, against his employer, the Chicago, Burlington & Quincy Railroad Company, under the Federal Employer's Liability Act (45 U.S.C. § 51, 45 U.S.C.A. § 51) for injuries incurred by plaintiff during the course of a switching operation in defendant's yard at Morton Park, Illinois, and allegedly caused by the negligence of defendant. A trial resulted in a verdict for plaintiff for $188,333.33; however, the court allowed defendant's motion for a new trial after denying a motion for judgment notwithstanding the verdict. A second trial resulted in a verdict for the sum of $70,000 and, on this occasion, defendant's motion for judgment notwithstanding the verdict was denied and judgment was entered on the verdict. On appeal, the Appellate Court for the First District reversed the judgment in favor of the plaintiff and directed judgment for defendant notwithstanding the verdict of the jury. Bonnier v. Chicago, B. & Q. R. Co., 351 Ill.App. 34, 113 N.E.2d 615. This court has granted plaintiff's petition for leave to appeal in order to further review the cause.

The well-established rule in both the Federal courts and the courts of Illinois is that a motion for judgment notwithstanding the verdict presents only a question of law as to whether, when all the evidence is considered, together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff's case. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847; Ill.Rev.Stat. 1951, chap. 110, par. 259.22. Section 1 of the Federal Employers' Liability Act makes a carrier liable in damages for any injury or death 'resulting in whole or in part from the negligence' of any of its 'officers, agents, or employees'. Other provisions of the act abolish the defense of assumption of risk and provide that contributory negligence of a plaintiff shall not bar a recovery. (45 U.S.C. §§ 51, 53, and 54, 45 U.S.C.A. §§ 51, 53, 54.) Thus, the sole question presented on appellate review is whether there is any evidence, considered in the light most favorable to the plaintiff, that defendant was guilty of negligence which contributed in whole or in part to plaintiff's injury.

The evidence of the accident, viewed in a light most favorable to plaintiff, was as follows: At the time of the occurrence, plaintiff was 48 years old and had been continuously employed by defendant as a railroad blacksmith for 19 years. Plaintiff did most of his work at a blacksmith forge located in a blacksmith shop near tracks 4 and 5 in what is known as the repair or 'Y' yard. His duties involved the forging of parts for freight cars, such as pin lifters, stirrups, grab irons, brake levers, etc., in the blacksmith shop. Sometimes he went out into what are called the 'Y' and 'Z' yards to assist in making repairs to cars loaded with perishable freight, emergency war material, and the like, known as 'hot' cars. Although the evidence was conflicting, there was testimony that plaintiff frequently went into 'Z' yard to obtain materials when the storeroom did not have the kind of steel he needed for repairs and that he had been told to do this by his superiors. On Sundays plaintiff occasionally worked as a repairman, oiler, car inspector, or in whatever other capacity he might be most useful.

On Friday, July 30, 1948, plaintiff ate his lunch in the blacksmith shop then left, intending to look over the bad order tracks to see if there was anything for him to do. Accordingly he went to track 15-Z, 100 to 150 feet from the blacksmith shop, where cars were stored pending their removal to repair tracks. In many instances plaintiff was required to make parts to effect the needed repairs. On the day in question the car nearest plaintiff was a gondola car which was involved in his accident. About five to ten feet west of the gondola was a boxcar, and to the east, at a distance of twenty to forty feet, was a standing locomotive. Having ascertained from the card on the side of the gondola that it had a defective sill step, plaintiff made a pattern for the sill step using paper, ruler and pencil. He then noted from material hanging over the side of the car that it contained scrap metal, and saw one piece of quarter-inch, 12 X 16 flat plate which he wanted to use for work in his shop in making a cart or an air-brake drum. He climbed up on the west end of the car to get this piece of metal, and as he was standing on top of the car facing in an easterly direction, five railroad cars were pushed in on track 15 from the west against nine standing cars, this cut of 14 cars moved about 240 feet striking 14 standing cars with enough force so that the cut of 28 cars continued east, striking the box-car and then the gondola car, causing plaintiff to be thrown to the ground and injured.

The record contains testimony tending to show that (1) this coupling operation was made with unusual force; (2) that it was done in violation of a custom not to shunt detached cars into standing cars when there was an engine within 20 to 40 feet of the standing cars; (3) that defendant could have taken additional safety measures in conducting such coupling operations, such as having a 'rider' on the cars to apply the hand brakes, and (4) that defendant's locomotive which pushed the cars into the gondola started from a standing position without ringing a bell or giving warning in any other way, in violation of a company rule. All of such evidence raises the factual issue of whether defendant exercised due care in the switching of cars in a yard where men were at work.

Considering the record as a whole, we cannot say, as a matter of law, that the evidence fails to establish a reasonable basis from which the jury could arrive at the conclusion that defendant was guilty of negligence which contributed, in whole or in part, to plaintiff's injury. Cases dealing with the extent to which questions arising under the Federal Employers' Liability Act should be left to the jury are numerous and, it must be admitted, not always consistent on the surface. In this instance, however, we are impelled, by recent decisions of Federal courts construing the act, to hold that there was sufficient evidence presented to support the jury's verdict for the plaintiff and that it was error for the Appellate Court to take from the jury the function of resolving that evidence. The prevailing view of those courts, by which we are bound in the interpretation of this Federal remedy, is most aptly summarized in the case of Louisville & N. R. Co. v. Botts, 8 Cir., 173 F.2d 164 at pages 166 and 167, as follows:

'In this connection, heed necessarily must be given to the unmistakable teaching of the Supreme Court in its recent decisions, that trial and appellate courts, both federal and state, on questions of liability under the Federal Employers' Liability Act, have been taking too narrow a view generally of the scope of permissive inference which is open to a jury on 'probative facts.' As one of the Justices has expressed it, in indicating the purpose of that Court's repeated overturning of decisions in such cases during the past few years (approximately 20 since 1943), 'The historic role of the jury in performing that function * * * is being restored in this important class of cases.' See concurring opinion of Mr. Justice Douglas in Wilkerson v....

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